The Inclusion of Organ Donation in One's Will

The Inclusion of Organ Donation in One's Will

Abul Fadl Mohsin Ebrahim

Al Wasiyyah is the Arabic equivalent of what is termed today as the will. The drafting of a Will during one's lifetime is divinely ordained. The Qur'anic imperative in this regard is as follows:

"O you who believe! When death approaches any of You, (take) witnesses among yourselves when making bequests, two just men of your own (brotherhood) or others from outside if you are journeying ........" (5:106)

Likewise, the Prophet Muhammad (ﷺ) has also emphasized the need to write down one's Will. He is reported to have said:

"It is not right for any Muslim person, who has anything to bequeath, that he may pass even two nights without having his last will and testament written and kept ready with him." (Sahih-al-Bukhari)

However, it ought to be noted here that according to Islamic Law, the proportionate respective shares that the legal heirs receive from the deceased's estate are neither dependent on a Will nor on any other direction of the deceased. Rather, these shares are governed by certain rules that have been laid down in the Islamic Law of Succession. Thus, what can be included in a Will are certain specific stipulations, for example that which relate to the affairs of the testator's young children, facilitating the marriage of the testator's daughters, and 'the devolution of one third of the testator's estate, in favour of particular person or a charitable institution.

Today the modern science has made it possible to harvest the organ of the deceased and to transplant it into the living for the purpose of improving the quality of life. The question that arises here Is whether it is permissible for the Muslim testator to include organ donation in his/her will? ,

In view of the fact that any explicitness (text) exists neither in the Qur'an nor in the Sunnah regarding this question, differences of opinion prevail among Muslim scholars.

 

Negative Resolution:

The Islamic Fiqh Academy of India, during its Second Fiqh Seminar-held between 8-11 December 1989 at the Hamdard Convention Centre. New Delhi, India, resolved that if a person has directed that after one's death one's organ should be used for the purpose of transplantation (testamentary disposi-tion, as is commonly known), it would not be considered as Wasiyyah (Will) according to Shari'ah.

The plausible factors / considera-tions that may have influenced the adoption of this negative resolution pertain firstly to the concept of human organs as Amanah (trust endowed to humans by their Creator) and secondly to the stance that human organ is invaluable.

 

i.  Human Organ: An Amanah

There are Muslim jurists who regard the human body (including its parts) as an Amanah (trust). Therefore, since a human being does not own his body, he cannot make a gift in respect of any part of his body either during his lifetime or after death. Thus to include organ donation in one's will would not be in order since one cannot give away that which one does not legally own.

 

ii. Human Organ; Invaluable

The testator's estate is termed in Arabic as mal mutaqawwam (asset upon which a price can be set for it). Muslim jurists are .of the opinion that a human being's person (organs included) is mal ghayr mutaqawwam (invaluable i.e., no price can be set for it). Thus it logically follows that since no price can be set for human organ, the inclusion of its donation in one's Will would be regarded as null and void.

 

Positive Resolutions

The Council of the Islamic Fiqh Academy of the Muslim World League; Makkah, Saudi Arabia, at its eighth working session (28 Rabi al Akhir 7- Jumada al Ula 1405 Hijri / 19-28 January 1985), resolved that it is permissible in Shariah to remove an organ from a dead person and transplant it into a living recipient on the condition that the donor was sane (mukallaf) and had wished it so.

The Council of the Islamic Fiqh Academy of the Organisation of Islamic Conference (QIC), during its Fourth Session held in Jeddah, the Kingdom of Saudi Arabia, from 6-11 February 1988, resolved that it is permissible from the Shariah point of view to transplant an organ from the body of a dead person if it is essential to keep the beneficiary alive, or if it will assist in restoring a basic function of the body, provided it has been authorized by the deceased or by his heirs after his death or with the permission of concerned authorities if the deceased has not been identified or has no heirs.

The above (positive) resolutions, we .may safely assume, provide a valid theoretical basis for the inclusion of organ donation in one's Will.

The considerations that have played a major role in influencing the adoption of the positive resolution relate to what is termed as al Ithar (altruism - generosity towards humankind) and al-darurah (the rule of necessity).

 

i. Al-Ithar (Altruism)

There are Muslim scholars who hold that a living person's gesture in willing to donate his/her cornea, for example, after death has taken place should be viewed as an act of altruism. After all, through corneal transplant the donor would in effect have made a noble contribution in restoring the sight of another fellow human being suffering from corneal blindness.

 

 ii.AI-Darurah (The Rule of Necessity)

Dr. Tanzil-ur-Rahman, a former Chief Justice of Islamic Shariah Court of Pakistan, is of the opinion that the inclusion of corneal donation, for example, into one's Will may be held permissible on the basis of the rule of necessity. He explains that the rule of necessity is based upon the juridical principle of al-lstihsan (juristic preference), that the needs of the living are given preference over that of the dead. Thus, the inclusion of organ donation in a Muslim Wilt could to be a positive step in resolving organ donation shortages worldwide.

 

The enforceable nature of such a Will

The Islamic Fiqh Academy of India, as pointed out above, resolved that any direction cited in the Will pertaining to the donation of one's organ for transplantation would be invalid and should not be honoured.

Dr. Tanzil-ur-Rahman is of the view that once a person has included organ donation in his/her Will, it will be valid and enforceable in Shariah, subject to the following conditions:

(i) The donation (by Will) is motivated purely for human good and be without any remuneration, consideration or compensation whatsoever.

(ii) The legatee's (donee's) be genuine and in the nature of extreme and dire necessity, having no alternative treatment, duly certified by two Muslim medical practitioners of integrity.

(iii) The legator (donor) leaves behind no heir. In case there is an heir, obtaining his consent, after death, shall be necessary. If any one of the heirs, there being more than one heir, does not consent to it, the Will shall not be executed.

(iv) In case the Will is in respect of eyes of the dead body, the said eyes be taken out or separated from the body, after certification of death by two Muslim medical practitioners of integrity, to the extent of the need as per Will, only before burial of the dead body and no insult not unnecessary disfiguration should be done to the dead body.

Insofar as who would have the jurisdiction to assent to the donation of the dead person's organ in the event that no such clause has been stipulated in the deceased's Will, the Council of the Islamic Fiqh Academy of the Organisation of Islamic Conference and Dr. Tanzil-ur-Rahman concur that the legal heirs have the right to assent to that.